Plaintiff Ronald Earl Potts claims that he is disabled by herniated discs in his lower back. He brought this action seeking review of the final decision of the Commissioner of Social Security denying his application for benefits under Title II of the Social Security Act. Plaintiff claims this decision is not supported by substantial evidence and applies an erroneous standard of law. Specifically, he alleges that the Administrative Law Judge failed to take account of all of his limitations when she posed a hypothetical question to the vocational expert and when she made findings concerning Potts's residual functional capacity. For the reasons set forth below, Plaintiff's motion is denied, Defendant's motion is granted, and the Social Security Administration's final decision is affirmed.

FACTUAL BACKGROUND

Potts was born on December 22, 1963, and was 40 years old at the time of the alleged disability onset date. (Record (hereinafter "R.") 15.) He is married and has two minor children. (R. 14.) He has an eleventh grade education and worked as a plumber until April 2004, when he hurt his back while at work. (Id.) He received a workers' compensation settlement (Id.), and has not worked since his injury occurred. (R. 37.)

Potts was diagnosed as having herniated discs in the lower lumbar spine in April 2004. (R. 160.) He began medical treatment for the pain resulting from his condition in May 2004. (R. 164.) Epidural steroid injections and physical therapy led to some improvement. (R. 163, 165, 179.) A functional capacity assessment conducted in November 2004, six months after his injury, revealed that Potts had the ability to perform light to medium work at that time. (R. 165.) Potts's plumbing job is a heavy physical demand level occupation, however, and his capabilities fell below this level. (Id.) As of July 2005, a report from a treating orthopedic specialist showed that Potts had reached pre-injury status and could resume the functional activities he had performed prior to April 2004.

(R. 14, 261.) This report observed that, contrary to the medical history Plaintiff had given the specialist, Plaintiff actually had longstanding back problems dating to the 1990s and that it appeared, based on MRI and X-ray evidence, that Plaintiff's April 2004 injury was simply "a temporary aggravation of an already known, symptomatic disease process." (R. 260.)

Potts is not under any active medical treatment. (R. 14.) He testified that he is scared of the possible side effects, and therefore takes medication only when he has serious flares, approximately once every eight weeks. (R. 37-38.) The only side effect from the medication that he reports is constipation. (R. 37.) He also performs daily exercises that he learned during physical therapy; he testified, "I do a TENS unit. I do a TENS ball. I have a cane. I have a Styrofoam roll. I have an exercise ball. All those things and the exercises that they taught me to do seem to keep [the pain] at bay." (R. 38, 49.) He has stated he cannot stand or sit for more than 30 minutes at a time. (R. 39.) On the advice of his doctors, Potts has refused surgery reportedly due to the risks of possible paralysis and an eighty percent chance of worsening his condition. (R. 47, 177, 179.)

Potts has no difficulties using his arms or hands. (R. 14.) He performs some household activities, such as cooking, making the bed, folding laundry, and doing dishes. (R. 40-41.) He asserts, however, that he cannot do a complete load of dishes because of the pain in his back.

(R. 52.) He also stated that in order to relieve muscle spasms, he must constantly switch positions from sitting to standing and vice versa. (R. 51.) He attends some of his children's school activities as well as church. (R. 14.) He drives approximately three times a week. (R. 40.) He occasionally handles household finances and uses a computer every day for approximately 15 minutes. (R. 42-44.)

PROCEDURAL HISTORY

On September 6, 2005,*fn1 Potts filed an application for a period of disability and disability insurance benefits, claiming he became disabled on April 12, 2004, due to degenerative disc disease and herniated discs in the lumbar spine. (R. 12, 81-83.) His claim was denied on December 7, 2005 (R. 60), and upon reconsideration on March 2, 2006. (R. 69.) Potts filed a timely request for a hearing on April 13, 2006 (R. 74), and testified at that hearing on September 12, 2007. (R. 31.)

Susan Entenburg testified as a vocational expert at the hearing. In response to a hypothetical posed by the Administrative Law Judge ("ALJ"), Entenburg testified that approximately 7,000 jobs in the Chicago metropolitan area are available for an individual of Potts's age, education, and work experience, who is limited to sedentary work with a sit/stand option at will. (R. 55-56.) She further testified that if such individual had to miss a day of work once every two months, this absence would be within tolerated limits. (R. 56.) She stated, however, in response to a hypothetical posed by Potts's counsel, that if an individual of such characteristics needed to take an unscheduled ten- to fifteen-minute break every two hours, the jobs she previously identified would be eliminated. (R. 56-57.)

The ALJ rendered a decision on October 26, 2007, finding that Potts was not disabled within the meaning of the Social Security Act. (R. 17.) The ALJ found that even though Potts's medical condition constitutes a "severe" impairment, it does not preclude him from performing a significant number of sedentary jobs (with a sit/stand option at will) according to the testimony of the vocational expert. (R. 12-13.) The ALJ acknowledged that Potts's condition could reasonably produce the alleged symptoms, but found his statements concerning the intensity, persistence, and limiting effects of these symptoms not entirely credible. (R. 14.) Potts appealed and on April 9, 2008, the ...

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